Alexander Komarenko v. Immigration & Naturalization Service

On March 12,1990, Alexander Komarenko, a former Soviet citizen and a lawful perma nent resident of the United States, was convicted of assault with a deadly weapon in violation of California Penal Code § 245(a)(2) and sentenced to four years of imprisonment. The I.N.S. commenced deportability proceedings against Komarenko under 8 U.S.C. § 1251 (a)(2)(C) for being an alien convicted of a firearms charge.

Komarenko concedes he is deportable, but submitted to the I.N.S. applications for asylum, withholding of deportation and waiver of inadmissibility. An Immigration Judge (“IJ”) held that Komarenko was: 1) ineligible for asylum under 8 U.S.C. § 1158 (a); 2) “statutorily ineligible” for withholding of deportation under 8 U.S.C. § 1253 (h)(2)(B); and, 3) “statutorily ineligible” for waiver of inadmissibility under 8 U.S.C. § 1182 (c).

Komarenko appealed to the Board of Immigration Appeals (“BIA”), which dismissed his appeal. The BIA concluded: 1) Komarenko was ineligible for waiver of inadmissibility under § 212(c) of the INA, based on the reasoning in Cabasug v. I.N.S., 847 F.2d 1321 (9th Cir.1988); 2) Komarenko had been convicted of a “serious crime” and was therefore ineligible…